UNIVERSITY OF BENIN v. SAMUEL EFIONAYI & ORS
(2019)LCN/12700(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of February, 2019
CA/B/3/2006
RATIO
ACTION: WHERE A CASE BECOMES HYPOTHETICAL OR FOR MERE ACADEMIC QUESTION
“The Black’s Law Dictionary 5th Edition defines ‘Academic Question’ at Pg. 11 as ‘An issue which does not require answer or adjudication by the Court, because it is not necessary to case, hypothetical or moot question.’ The Supreme Court in Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 opined that an action becomes hypothetical or raises mere academic point where there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it, it is otherwise an exercise in futility. When an issue in an appeal has become defunct, it does not require to be answered or controverted and leads to making of bare legal postulations which the Court should not indulge in, it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a suit in that state has none particularly, and practically to the Appellant or Plaintiff as the case maybe. A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. Therefore the question of whether a suit has become academic is a matter of mixed facts and law.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT AN RESOLVE ACADEMIC QUESTION
“There is no more dispute for this Court to resolve and the Court will not act in vain to answer academic questions. The issue for determination even if resolved in favour of the Appellant has no further utilitarian value. See Plateau State v. A.G.F (2006) 1 SC Pt. 1 Pg. 1; (2006) 3 NWLR Pt. 67 at 346; Ndulue v. Ibezim & Anor (2002) 12 NWLR Pt. 780 Pg. 139.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF BENIN – Appellant(s)
AND
1. SAMUEL EFIONAYI
2. EFE IMALELE
3. SUNDAY IGHARO
4.SUNDAY AHANOR
(For themselves and on behalf of Aduwawa Village Community) – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Edo State, delivered by Honourable Justice G.E. Edokpayi on 12/2/2002 wherein judgment was given in favour of the Respondents at trial.
The facts that led to this appeal are as follows:
The Mid Western State Government (now defunct) acquired land belonging to the Respondents herein who were Plaintiffs at trial for public purposes for the University of Technology, which subsequently became the University of Benin, the Appellant herein.
The Respondents then filed an action against the Appellant at the trial Court claiming they were not served notice in respect of the acquisition and for non-payment of compensation.
The trial Court entered judgment in favour of the Respondents and set aside the purported acquisition and a sum of 1 Million Naira to be paid to the Respondents being damages for trespass and illegal occupation of the land by the Appellant.
Dissatisfied, the Appellant filed a notice of Appeal on 9/7/2002, record was transmitted in 2006 and Appellant’s brief filed on 27/2/2006. The Appellant’s reply brief was filed on 24/5/2016. The Respondents’ brief was filed on 26/6/2007 and deemed filed on 9/7/08.
Following this Court’s direction, the Appeal number was changed from CA/B/132m/2002 to CA/B/3/06. The Appellant filed a new brief on 21/1/18 but the extant Respondents’ brief on record appears to be one filed on 26/6/07 deemed filed on 9/7/08 with Appeal No. CA/B/132m/2002 inadvertently put thereon even though the record had been entered in 2006 and the correct Appeal number had been given to the parties. It is to be noted that the Respondents’ counsel S. Iredia Osifo Esq. despite repeated service on him was unable or unwilling to defend the appeal. In the circumstances the Respondents’ brief filed on the 26/6/07 is deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
In the brief settled by Mr. S.A. Asemota Esq., SAN the Appellant identified three issues for determination to wit: –
1. Whether the learned trial judge was right in granting the declaratory relief sought in this suit against the Appellant.
2. Whether the learned trial judge was right in awarding N1, 000, 000. 00 (One million Naira) as damages for trespass and unlawful occupation of the land, and other reliefs sought.
3. Whether the learned trial judge was right in embarking on the hearing and determination of this case which is statute barred.
Learned Respondents’ counsel S. Iredia Osifo who settled the brief, identified four issues for determination as follows: –
1. Was the judgment in this suit against the weight of evidence.
2. Whether the non joinder of the defunct Mid Western State Government has made it impossible for the Appellant to put its case across to the lower Court.
3. Whether the award of N1, 000, 000. 00 (One million Naira) damages against the defendant/Appellant in favour of the Respondent by the lower Court had no basis in law.
4. Was the cause of action in this case statute barred having regard to the evidence before the lower Court?
In my humble view the issues for determination can be distilled into a sole issue as follows:
Whether the instant case is statute barred and in the peculiar circumstances, if the trial Court was right to have granted the reliefs sought by the Respondents.
At Pg. 10 of the Respondents’ brief and the last paragraph, the Respondents’ counsel argued as follows:-
At the hearing of this appeal the Respondents will also seek leave of this Court to adduce additional evidence to show that the subject matter of this appeal no longer exists because it has been de-acquired by the Governor of Edo State and given back to its original owners.
In this appeal, the Respondents filed a process on 2/2/11 praying this Court for an order to strike out the appeal as the res is now extinct. The ground for the application is stated to be that:-
The entire land which is the subject matter of this appeal was de-acquired by the Edo State Government on 28/03/03 and shared between the State Government and the Respondents/Applicants. Therefore in the Respondents/Applicants’ view, pursuing this appeal further in this Honourable Court will be merely academic.
The motion was supported by an 8 paragraph affidavit, the germane portions which are Paragraphs 4, 5, and 6 are set out below: –
4. That I am informed by Mr. Jonathan Ukpomwan JP a staunch member of the Respondents/Applicants’ community in my office on 26/01/11 at about 3.20p.m and I verily believe:
(a) That after the judgment of the trial Court he was a member of a delegation including the named Respondents/Applicants mandated by his community to make representations to the then Governor of Edo State, Chief Lucky Igbinedion, about the rather shabby treatment meted out to them by both the Government of the defunct Mid-West State and the Appellant.
(b) That based on the said representation, the then Edo State Commissioner for Lands, Surveys and Housing sent a memorandum to the Governor of Edo State requesting that the land in dispute be de-acquired and given back to the Respondents/Applicants’ community, owners of the land.
(c) That on 28/03/2003 the then Governor of Edo State, Chief Lucky Igbinedion gave approval that the Respondents/Applicants’ communal land of approximately 256.51 which was the subject matter of the litigation at the lower Court be de-acquired and retrieved from the Appellant in this appeal. A copy of the notice of the de-acquisition sent to the Chairman of the Respondents/ Applicants’ community is attached herewith and marked Exhibit ‘A’.
(d) That the de-acquired land was shared between the Edo State Government and the Respondents/Appellants. A portion measuring 100 hectares given back to Respondents/Applicants’ community has been completely used up by the people of the community. Even the portion retained by the government has been completely built up as well.
(e) That on 14/11/ 2006 he applied for a certified true copy of the memorandum by which the subject matter of this appeal was de-acquired by the Government of Edo State.
(f) That the certified true copy of the said memorandum was not made available to him until about the end of January 2007 after an extensive search for the file in the Edo State Ministry of Lands and Surveys. Copies of the application, the memorandum and copy of the receipt paid are attached together herewith and marked Exhibit ‘B’.
5. That though the land the subject matter of this appeal is still in existence physically albeit completely used up by the Respondents/Applicants’ community it can no longer be said that same is still a res in this appeal since the Appellant can no longer lay claim to the said land in view of Exhibit A and events that followed the de-acquisition.
6. That in the absence of a res further pursuit of this appeal will be merely academic.
In view of the last paragraph of the Respondents’ brief and the aforesaid paragraphs of motion filed by the Respondents on 2/2/11, it was thought expedient to recall the parties.
The parties were re-called to address the Court on 6/2/19. Even though once again the Respondents? counsel was served, he did not turn up to answer the questions posed by the Court for both counsel to answer which are:
1. The propriety of the Respondents’ application filed on 2/2/11.
2. Whether or not the questions raised in the Appellant’s brief are still live or they have turned to mere academic exercise.
On 6/2/19, learned Senior Counsel for the Appellant Mr. Solomon Asemota SAN, with him Osato Ize-Iyamu argued that the appeal is still live and that the letters attached to the affidavit in support of the motion are of no moment. Senior Counsel argued that the issues for determination in this appeal are still live as the land in issue was acquired before the Land Use Act. Therefore, the land is not the property of the State Government but that of the Federal Government. The agreement between the community and the Edo State Government would then be illegal, completely of no effect and should not affect the jurisdiction of this Court.
To determine whether this appeal is now an academic exercise, I need to consider the issues for determination and the reliefs sought by the Appellant vis–vis the position of the Respondents that there is nothing more to quarrel over and that this Court should not be answering a question with no impact on the present status, rights and interests of the parties.
We must remember that this appeal emanated from a suit instituted in 1991, more than 28 years ago. The appeal in this Court was entered in 2002, more than 16 years ago. On Pg. 186-190 of the Record, the basis of this appeal is that the judgment is against the weight of evidence and that the Appellant never trespassed on the land and that the finding of the trial Court that the land was never properly or legally acquired by the Government of the Former Western Region is erroneous. The further complaints are that the Respondents did not sue the right party or did not join the right party in litigation which the Appellant insisted must be the Edo State Government who derived title from the Government of the Mid Western Region and not the Benin University who were mere beneficiaries of the acquisition, lastly that the Respondents’ suit at trial was statute barred.
The specific relief sought from the Court of Appeal by the Appellant is set out below: –
‘That the decision of the High Court be set aside and the Respondent’s struck out for being statute barred and disclosing no cause of action against the Appellant.’
We must work from the premise that even if the appeal is allowed and the relief granted, of what impact would be the outcome on the present disposition of the parties.
The Black’s Law Dictionary 5th Edition defines ‘Academic Question’ at Pg. 11 as ‘An issue which does not require answer or adjudication by the Court, because it is not necessary to case, hypothetical or moot question.’
The Supreme Court in Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 opined that an action becomes hypothetical or raises mere academic point where there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it, it is otherwise an exercise in futility. When an issue in an appeal has become defunct, it does not require to be answered or controverted and leads to making of bare legal postulations which the Court should not indulge in, it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a suit in that state has none particularly, and practically to the Appellant or Plaintiff as the case maybe. A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity. Therefore the question of whether a suit has become academic is a matter of mixed facts and law.
Now the facts on ground today on one hand is that while the Appellant wants us to declare the action filed in 1991 as statute barred and to hold that the Government of Edo State was the principal and should have been joined as a party, the other undisputed facts is that after the judgment of the trial Court on 12/2/02, on 31/3/03, the Government of Edo State through the Ministry of Lands, Surveys and Housing wrote to the Chairman of Aduwawa Community that the Governor in Council had graciously approved the de-acquisition of 100 hectares of land in Aduwawa along Benin Auchi Highway for the purpose of infrastructural development and that the part of the Upper Mission Road in the land remains the property of the State Government. The Community then requested for and was provided with the Certified True Copy of the de-acquisition memo which was signed and approved by the Governor of the State. All these documents were attached to the affidavit in support of the application to strike out the appeal as having been overtaken by events.
I am of the humble view that giving the antecedents of this case and this appeal, there is no doubt that indeed answering the questions for determination in this appeal holds no practical or utilitarian value for either side who have apparently settled that matter in controversy between the community and the Edo State Government who the Appellant’s counsel said should have been involved ab initio. There is no more dispute for this Court to resolve and the Court will not act in vain to answer academic questions. The issue for determination even if resolved in favour of the Appellant has no further utilitarian value. See Plateau State v. A.G.F (2006) 1 SC Pt. 1 Pg. 1; (2006) 3 NWLR Pt. 67 at 346; Ndulue v. Ibezim & Anor (2002) 12 NWLR Pt. 780 Pg. 139. Indeed in other climes, these types of disputes are resolved amicably and administratively with the cooperation of counsel on both sides. Now, there is no need to answer any question in this appeal where the res in dispute has been shared amicably by arbitration between the parties. About time for an appeal pending in this Court for more than 12 years.
I need to emphasize that it is not only where the issue for determination does not arise from the decision of the lower Court that it becomes an academic question.
In the circumstances of this appeal, this appeal is purely a hypothetical one and the issues submitted should not be answered as it would be an exercise in futility. The Appeal is struck out.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading the draft copy of the judgment just delivered by my learned brother H.M. OGUNWUMIJU JCA.
I agree with the reasoning and conclusion contained therein to the effect that the Appeal is a purely hypothetical one. To engage in further consideration of the appeal will amount to embarking on a voyage into the realm of academic gamble that will serve no purpose under the circumstance. Accordingly, I also order that the appeal be and is hereby struck out.
I make no order as to cost.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA.
I agree that this appeal, having become academic, is liable to be struck out.
For the reasons given by my learned brother, I also strike out the appeal.
Appearances:
Solomon Asemota, SAN with him, Osato Ize-IyamuFor Appellant(s)
For Respondent(s)
